Tuesday, February 28, 2012

The Illusion of Privacy in Social Media

You probably already use and enjoy the many benefits of social media websites. Despite these established benefits, we encourage you to think twice before your next post. Anything and everything that you post to a social media site can potentially be used against you in court.

It seems that everyone has at least one Facebook, LinkedIn, Twitter, MySpace or Google+ account, to name but a few of the most common examples. All of these sites are designed to allow users to create and share content with other users in the form of posts, pictures, videos and status updates. Additional sites, such as YouTube, Picasa and blogs are also comprised of user-created content, although without the built-in sharing with "friends," "circles" or "networks". For the purpose of this article, the term "social media" includes all of the above types of websites and applications.

In the legal field, the term "discovery" refers to the process by which a party to the case can compel someone else to disclose information. The complete list of rules that govern discovery are too numerous to list here, but some common methods of discovery include subpoenas, depositions and requests for copies of documents or electronic files. Discovery can be directed to the plaintiff or defendant in a case or it can be directed to a third party, such as a witness, employer or social media company
, like Facebook . Each of these methods of discovery is compulsory, meaning that the person or company must provide the requested information unless there is a valid legal justification for not doing so. Failure to provide required discovery can result in sanctions, such as fines and imprisonment. Discovery is a very powerful tool backed by the full powers of the court hearing the case. 

In one example of sanctions imposed for particularly egregious conduct, a Virginia court ordered the plaintiff to pay $180,000.00 to the defendant's attorney and referred the matter to the district attorney for consideration of criminal perjury charges against the plaintiff.  In that case, Lester v. Allied Concrete Co., Mr. Lester was pursuing a claim for his wife's personal injuries and wrongful death.  During its investigation of the public section of Mr. Lester's Facebook page, the defense found a picture of Mr. Lester holding a can of beer and wearing a T-shirt that read "I [heart] hot moms."  Arguing that this photograph suggested that Mr. Lester was not distraught over his wife's death, the defense requested access to the remainder of Mr. Lester's Facebook account and his MySpace account.  Upon the improper advice of his attorney, Mr. Lester deleted several photos and other items from his Facebook and MySpace accounts, deactivated the accounts and gave sworn deposition testimony that he did not have such accounts.  In addition to the sanctions levied against Mr. Lester, the court also ordered his attorney to pay $542,000.00 to defense counsel and referred the attorney to the Virginia State Bar for disciplinary action.  Failure to comply with legally required discovery can be both criminal and financially disastrous. 

Your Facebook, Twitter, Google+ and other social media information, including pictures saved online at Picasa or Flickr and videos posted to YouTube, may all be discoverable. Yet folks often post information that they do not want certain other people to see, believing the information is protected through privacy settings. The rationale is: "Only my friends can see this, so it's okay."  But we have no control over what our friends do with the information we post, and they may repost it or make it public, even if by mistake.  Even if our friends do not publicize our posts, they may still be deposed in a legal case and required to answer questions under oath about our posts.

Another misconception is that the website, such as Facebook or Google, will protect the information from disclosure or that these companies are forbidden from disclosing the information by law.  There is a federal law, called the Stored Communications Act (SCA), that provides some protection against disclosure of electronic communications by third-party service providers.  However, the SCA was enacted before the rise of social media and its provisions are not tailored to address the characteristics of social media sites.  It was
specifically designed to address internet service providers, not social media sites.  Courts considering the issue have reached different conclusions about the degree to which the SCA protects social media content from disclosure.  

For example, in Crispin v. Christian Audigier, Inc., where an artist claimed that the defendant was misusing her artwork, a federal district court in California concluded that the defendant could subpoena portions of the artist's Facebook and MySpace pages directly from the social media sites.  But in Romano v. Steelcase, a New York court concluded that the SCA forbids direct disclosure by social media companies, meaning that the defendant could not send a subpoena directly to the Facebook demanding disclosure of information.  However, the Romano court did order the plaintiff to sign authorizations, granting Facebook and MySpace permission to provide complete copies of her profiles to the defendant.  So, in neither case did the SCA actually stop the defendant from getting the requested information.  It simply altered the method of discovery.  Since social media is a relatively new phenomenon, the law governing discovery of it continues to develop and cases vary from state to state but a few general trends have emerged.

First, anything that is publicly and openly posted for all to see is generally discoverable. This includes posts to a Twitter account that anyone can follow, a non-private Facebook wall that can be viewed by non-friends and YouTube videos.  Second, anything that is posted privately to an open audience will often be discoverable, especially if it is directly relevant to the issues in the case. Examples of this category of information include posts that only friends or people in a designated group can see, such as posts to a private Facebook wall or pictures shared with a group of friends on Flickr or Picasa.  For example, in the Crispin case, the court concluded that Facebook wall postings and MySpace comments may be discoverable if they are likely to relate to the claims in the legal case, but private messages within these applications were not discoverable.  Third, several courts have even required disclosure of private, one-to-one messages, such as emails sent within Facebook, as the following cases demonstrate.  

In the Romano case, the court reasoned that all information in social media accounts should generally be discoverable.  The court stated that:
"when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings . . . [so] she cannot now claim that she had a reasonable expectation of privacy."  
In McMillen v. Hummingbird Speedway, Inc., a Pennsylvania court reached the same conclusionMr. McMillen claimed that he was injured in a collision during a car race.   After discovering comments about a fishing trip and attending the Daytona 500 on the public portion of Mr. McMillen's Facebook page, the defense sought discovery of the entire contents of any social networking sites he used.  The court noted that the terms on Facebook and MySpace privacy policies each provide those companies with complete access to the user's information and the sites are designed to enable sharing of information among users.  Because the user is on notice that communications are not completely private, the court concluded that "it would be unrealistic to expect that such disclosures would be considered confidential" and ordered Mr. McMillen to provide his usernames and passwords and to preserve all existing information in his social media accounts. 

While it is impossible to say with certainty exactly what would happen in any given circumstance, the potential clearly exists for discovery of any post or communication made within a social media application. In some cases, even deleted information or data remaining on the company's servers after an account has been closed may be discoverable. In Romano, for example, the court granted discovery of "current and historical Facebook and MySpace pages and accounts . . . including any records previously deleted or archived by said operators."  Facebook keeps a user's profile stored on its computers after the user has "deactivated" her account. By simply signing in using the old username and password, the account reactivates and all prior posts, photos and messages reappear. Since you have no control over how long this information is stored on the company's servers, it may remain available for discovery indefinitely after you have "closed" or "deleted" your account.   

When you initially post
"private" information, you may limit disclosure to certain predetermined viewers, but that illusion of privacy quickly vanishes in the legal discovery process. For that reason, before you click to post, always consider how you might be negatively affected if the information becomes public.  Better yet, consider anything that you post on a social media site to be public information.

For more information about how discovery of information in your social media account may affect your injury claim, contact our team of
experienced personal injury attorneys at VanMeveren Law Group, P.C.